The Article suggests an approach courts should use when considering whether to abate a public nuisance within a home that is consistent with the goals and purposes of traditional public nuisance law as well as modern approaches to the regulation of individual rights and property. Part I provides the background for the analysis as it examines the common law origins of public nuisance law and the expansion of the equitable remedy of abatement. It also contrasts the law of public nuisance with the law of civil forfeiture. Although the law of civil forfeiture also permits uncompensated seizure of property connected to unlawful conduct, it often provides important procedural and substantive protections that public nuisance law does not. Part II examines the constitutional rules that protect the home and individual rights related to it from government intrusion under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. Part ill considers the home as property and the protection the Constitution provides private property rights. It also examines the role of public nuisance law in the Court's takings analysis, which now largely rejects the broad exercise of police power that has justified much of public nuisance law. Part IV examines Bennis v. Michigan, the 1996 public nuisance case in which the Supreme Court failed to apply the takings analysis it outlined only a few years earlier in Lucas v. South Carolina Coastal Council. Bennis has been criticized for, among other things, its treatment of innocent family members in the context of criminal law and contemporary notions of the rights of married women. This Article criticizes the Court's analysis of Michigan's public nuisance statute in light of recent cases analyzing claims of statutory impairment of individual and economic rights. Finally, Part V suggests an approach for reconciling the public power expressed in public nuisance law with the importance of private rights embodied in the home. It urges courts to consider the abatement of public nuisances with the same critical, case-by-case analysis of state power that they must apply to takings and due process law challenges in land-use and other areas. Application of public nuisance law in this manner acknowledges its historical and common law roots as an equitable tool used by the state to further public policy goals. It also promotes greater consistency in the application of takings and due process doctrine.
Connecticut Law Review
Mary B. Spector, Crossing the Threshold: Examining the Abatement of Public Nuisances within the Home, 31 Conn. L. Rev. 547 (1999)